August 06, 2010

Court Says GPS Surveillance Requires Warrant

A Washington appeals court today struck down a man's conviction and life sentence in a drug case on the grounds the police unlawfully tracked his movement with a GPS device that had been installed without a warrant on his vehicle.

The unanimous three-judge ruling in the U.S. Court of Appeals for the D.C. Circuit said that law enforcement officers must obtain a warrant to use GPS tracking equipment. The appeals court said the government violated the Fourth Amendment and reversed the conviction of the defendant, Antoine Jones, former co-owner of a night club in Washington.

"We're gratified that a unanimous D.C. Circuit agreed that protecting civil liberties requires that the technology of the 21st Century be evaluated on its own terms, and not as if it were still the technology of past decades,” said Arthur Spitzer, legal director of the American Civil Liberties Union National Capital Area, which participated as a friend-of-the-court. “That principle needs to be applied in many other contexts as well.”

A spokesman for the U.S. Attorney’s Office for the District of Columbia, William Miller, said the government is reviewing the opinion. Miller declined to comment further. Prosecutors could decide to ask the full court to review the case. The government can also petition the U.S. Supreme Court to take the case. Two federal appellate circuits—the 9th and the 7th—have found that the use of GPS tracking over a long period of time is not a “search” under the Fourth Amendment.

Federal prosecutors argued the police did not need a warrant to track the travels of the drug trafficking suspect, Antoine Jones, because he was moving freely about in a vehicle on public roads in the District of Columbia and in Maryland. The authorities initially had a warrant, but it expired. The GPS device was re-attached to Jones’s vehicle in violation of a court order in the U.S. District Court for the District of Columbia.

The appeals court, in a 41-page opinion written today by Judge Douglas Ginsburg, rejected the government’s position. Click here for the opinion and here for earlier coverage of the case.

Ginsburg, joined by Judges David Tatel and Thomas Griffith, said the “whole of a person’s movement” is not “exposed” to the public because the whole reveals more about a person than individual movements. Ginsburg drew a comparison to a person’s rap sheets, suggesting that one crime in a person’s papers does not compare to a full understanding of the person’s criminal history.

“It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work,” Ginsburg wrote. “It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person‘s hitherto private routine.”

A single trip to a gynecologist‘s office “tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story,” the judge said. “A person who knows all of another‘s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.

Jones , co-owner of the “Levels” nightclub, became targets of a Metropolitan Police Department drug investigation. The authorities arrested Jones and Maynard in October 2005 on charges that included conspiracy to distribute cocaine. At trial, a jury acquitted Jones on a number of counts but could not reach a verdict on the conspiracy charge. A mistrial was declared.

Prosecutors brought Maynard and Jones to trial in late 2007, and a jury found the men guilty in January 2008. The government’s case was largely built on the GPS evidence—allegedly showing Jones driving to and from a drug stash house in Maryland. Prosecutors did not have any evidence showing Jones was involved in any drug transaction. The government relied heavily on statements from co-conspirators who claimed Jones was a ringleader in a trafficking organization.

Jones's trial counsel, A. Eduardo Balarezo, a solo practitioner in Washington, said, "Mr. Jones always said that all he wanted was for the law to be applied fairly, today he got his wish."

Stephen Leckar of Washington’s Shainis & Peltzman, who argued for Jones in the D.C. Circuit last November, said that requiring investigators to adhere to the “modest requirement” of obtaining a warrant will not burden law enforcement.

“Judge Ginsburg’s eloquently-written opinion recognized the increasing importance in a high-tech age of requiring law enforcement agents to seek the approval of a neutral judge before surreptitiously installing a device that records relentlessly your every movement in time and space,” Leckar said.